mode defense in Alabama

1935Bromberg v. Heyer, 69 Ala. 22 ; Phillips v. Adams, 70 Ala. 373 ; Manning v. Pippen, 86 Ala. 357 , 5 So. 572 [ 11 Am.

1890Where, however, the bill 'or complaint avers that the contract is not in writing, the defense may be taken -advantage of by demurrer; but the fact must clearly and. affirmatively appear on the face of the bill, before this mode of defense' can be resorted to. — Bromberg v. Heyer, 69 Ala. 22 ; Phillips v. Adams, 70 Ala. 373 ; Manning v. Pippen, 86 Ala. 357 .

1935Bromberg v. Heyer, 69 Ala. 22 ; Phillips v. Adams, 70 Ala. 373 ; Manning v. Pippen, 86 Ala. 357 , 5 So. 572 [ 11 Am.

1890Where, however, the bill 'or complaint avers that the contract is not in writing, the defense may be taken -advantage of by demurrer; but the fact must clearly and. affirmatively appear on the face of the bill, before this mode of defense' can be resorted to. — Bromberg v. Heyer, 69 Ala. 22 ; Phillips v. Adams, 70 Ala. 373 ; Manning v. Pippen, 86 Ala. 357 .

1935Bromberg v. Heyer, 69 Ala. 22 ; Phillips v. Adams, 70 Ala. 373 ; Manning v. Pippen, 86 Ala. 357 , 5 So. 572 [ 11 Am.

1890Where, however, the bill 'or complaint avers that the contract is not in writing, the defense may be taken -advantage of by demurrer; but the fact must clearly and. affirmatively appear on the face of the bill, before this mode of defense' can be resorted to. — Bromberg v. Heyer, 69 Ala. 22 ; Phillips v. Adams, 70 Ala. 373 ; Manning v. Pippen, 86 Ala. 357 .

2015The guarantors’ brief quotes Fears v. Thompson, 82 Ala. 294 , 2 So. 719 (1887), which, in examining a predecessor statute to § 6-10-123, stated: “The design of the statute is, to provide the mode by which the claim of the waiver of exemptions may be regularly and appropriately presented in the pleadings, so that issue thereon may be joined, and the defendant have opportunity to appear and contest it.” 82 Ala. at 296 , 2 So. at 720 (emphasis added).

2015The guarantors’ brief quotes Fears v. Thompson, 82 Ala. 294 , 2 So. 719 (1887), which, in examining a predecessor statute to § 6-10-123, stated: “The design of the statute is, to provide the mode by which the claim of the waiver of exemptions may be regularly and appropriately presented in the pleadings, so that issue thereon may be joined, and the defendant have opportunity to appear and contest it.” 82 Ala. at 296 , 2 So. at 720 (emphasis added).

1912(N. Y.) 151; Bogle v. Bogle, 3 Allen (Mass.) 158.” In the case of McDaniel v. Callan, 75 Ala. 327, 331 , this court, speaking by the same learned Chief Justice, said: “A cross-bill is, in its very nature, a mode of defense; its purpose is either to obtain a discovery in aid of the defense to the original bill, or to obtain full relief touching the matters of the original bill, or to set up some matter which has arisen after the cause was at issue.

1900Co. v. Norton, 96 U. S. 234 .

1898This method substituted the trial judge for the jury to decide the weight and sufficiency of the •evidence and admitted its competency for all purposes, leaving the only question to be determined whether the issues upon the evidence were for the plaintiff or defend ants. —Buffington v. Cook, 39 Ala. 64 ; Central Railroad v. Roquemore, 96 Ala. 236 .

1898This method substituted the trial judge for the jury to decide the weight and sufficiency of the •evidence and admitted its competency for all purposes, leaving the only question to be determined whether the issues upon the evidence were for the plaintiff or defend ants. —Buffington v. Cook, 39 Ala. 64 ; Central Railroad v. Roquemore, 96 Ala. 236 .

1885“It may fail for want of necessary averments, or defect of proof, and still the complainant in the original bill may obtain no relief for want of equity in his bill, or for a like defect of proof.” Parish v. Galloway, 34 Ala. 163 , supra. We are of opinion that an appeal from a decree sustaining a demurrer to a cross-bill is not authorized by section 3918 of the Code.